ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for November, 2014

“The Use of an Interpreter, on its Own, Is Irrelevant to the Issue of Credibility”

November 27th, 2014

Reasons for judgment were released today by the BC Supreme Court addressing whether a witness who has a good understanding of English should have their credibility negatively assessed where they choose to testify trough an interpreter.  In short, the Court held that this factor alone is irrelevant in assessing credibility.

In today’s case (Kim v. Khaw) the Plaintiff was injured in a vehicle collision that the Defendant was responsible for.  The Plaintiff sued for damages and testified using a translator.   The Plaintiff had a good understanding of English and as a result the Defendant argued the Plaintiff’s credibility should be negatively impacted by using the buffer provided by a translator.   Madam Justice Sharma disagreed and in doing so provided the following reasons:

[100]     Mr. Kim’s comprehension of English was good; therefore, does his decision to use an interpreter impact his credibility?

[101]     There is no doubt that hearing evidence through the filter of an interpreter can be challenging: Wang v. Hu, 2003 BCSC 552 at para. 24; R. v. A.F., 2010 ONSC 5824 at para. 87. The court must be alive to the fact that the impact or nuance of interpreted testimony may be “lost in translation”, especially during cross-examination. For example, inconsistencies in explanations or expressions may be the inevitable result of there being no exact translation, or perhaps many translations, for an English word, phrase or concept in the foreign language.

[102]     It is unfortunate, but inescapable, that hearing evidence through an interpreter may make it more difficult to consider and weigh that evidence. Difficulty, however, cannot be a bar to fairness; fairness is the measure against which the court must gauge whether the fact that evidence was given via an interpreter is relevant to or affects the credibility of that witness’ testimony.

[103]     Mr. Kim felt more comfortable testifying in Korean. A major issue in this case is whether his mental status has been detrimentally affected by the Accident. This required him to discuss and reveal highly personal and emotional information, including his intimate relationship with his wife and his interactions with his children. He testified about matters that all doctors accepted he felt enormous shame and guilt about. I find it reasonable and understandable that he would choose to testify in his native language even if he does understand English well. This is especially true because he is not just a witness, but a party, in the case.

[104]     The comfort of one’s native language, even when English is understood, is surely a factor for many witnesses who testify via an interpreter. That comfort would be seriously eroded if, without reasonable justification, a court were to take into account a witness’ preference for interpretation when weighing their evidence or assessing their credibility. It is my view that the use of an interpreter, on its own, is irrelevant to the issue of credibility. To find otherwise could unfairly prejudice participants in the trial process who used interpreters and could undermine public confidence in the trial process. In my view, there must be some evidence, or a reasonable inference that can be drawn from evidence, that the witness’ use of the interpreter was not necessary for them to fairly participate in the trial, but rather was a deliberate intent to gain some advantage: Mee Hoi Bros. Co. v. Borving Investments (Canada) Ltd., 2014 BCSC 1710 at para. 13 and 21 [Borving].

[105]     In this case, Mr. Kim demonstrated that he does understand spoken and written English, and that he speaks English (although, from the very little I heard, with a heavy accent and somewhat haltingly). I understood the defendants to rely on Mr. Kim’s facility with English as another reason the court should not rely on his testimony. I find that to be irrelevant to the weight I attach to his evidence. In this case, the defendants’ counsel was able to conduct a vigorous and effective cross-examination of the plaintiff despite the interpretation.

[106]     I do not discount the possibility that counsel may want to argue that the use of an interpreter, where one was not absolutely necessary, caused the trial to be longer which should be recognized in a costs award, but that issue is entirely different from credibility.


Bus Driver Partly Liable For Passenger Injury After Stopping Too Far From The Curb

November 26th, 2014

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, finding a bus driver partly liable for injuries after a passenger fell while disembarking the bus.

In the recent case (Isaacs v. Coast Mounatain Bus Company Ltd) the Plaintiff fell while getting off the bus.  At the time the bus stopped some 12-14 inches from the sidewalk contrary to their policy of stopping closer to the curb.   The Plaintiff attempted to jump to the curb resulting in injury.  The Court found both parties equally to blame for the incident.  In holding the Defendant 50% liable Madam Justice Watchuk provided the following reasons:

[47]         If the distance of the front door of the bus from the curb was greater than ten inches, there is potential negligence on the defendants.  As stated above, Translink has in place guidelines for a standard bus stop that state that buses should be stopped parallel to the curb and within six to ten inches of that curb.  However, the defendants’ negligence is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented themselves at the time of this specific accident (Heyman v. South Coast British Columbia Transportation Authority (c.o.b. Translink), 2013 BCSC 1724 at para. 68). 

[48]         Although the defendants’ policy directive is not determinative, in light of these specific circumstances I find that the policy of stopping less than ten inches away from the curb reflects the standard of care required by a reasonably prudent bus driver.  Thus, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence and it would be for the defendants to establish that the plaintiff’s injuries occurred without negligence on their part or due to a cause for which the defendants were not responsible. 

[49]         Ms. Isaacs’ evidence is that the bus came to a stop at an angle with the front of the bus further from the curb than the back of the bus.  Her evidence was that the distance from the bottom step to the curb was 12-14 inches.  In cross-examination she disagreed with the statement that the distance was only six inches from the curb, and responded, “Oh no – it was wider, quite wide”.  This is consistent with her evidence that when she was on the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus was closer to the sidewalk than the front. 

[50]         I accept Ms. Isaacs’ evidence in this regard.  I have noted that her memory of the number of steps at the front of the bus is incorrect, as she recalled one step at the front when there are three steps on this type of bus.  However, other than this point, her evidence with regard to the location of the bus when it was stopped is persuasive and is consistent with the other details of the scene at the time of her fall. 

[51]         The evidence of Mr. Payne is, I find, evidence of his usual good practice with regard to stopping the bus with the front and rear exits at an equal distance, and six inches from the bottom of the steps to the curb.  However, his evidence with regard to this stop is internally inconsistent.  He testified that he drives the bus straight in the curb lane.  He also testified that he angles the wheel to the left prior to the stop so that he is ready to pull out into traffic when the bus leaves the stop.  On the evidence of this stop of this bus prior to this incident, I find that Mr. Payne angled the steering wheel to the left prior to the bus coming to a complete stop.  Thus the front of the bus and the front door were further from the curb than the back of the bus and the back door. 

[52]         I accept Ms. Isaacs’ evidence that the bottom step of the front door exit was 12-14 inches from the curb, and therefore greater than ten inches from the curb.  I accept her evidence that the distance is the reason that she jumped from the bottom step to the curb rather than going down the bottom step to the pavement, crossing and stepping up on the curb to the sidewalk. 

[53]         That the bus was parked further than ten inches from the curb is contrary to the defendants’ internal policy.  In these circumstances it was a breach of the defendants’ standard of care owed to the plaintiff. 

[54]         A further breach of the defendant Mr. Payne is that, having stopped the bus further than ten inches from the curb, he did not warn Ms. Isaacs of the potential hazard being the excess distance.  Although he considered a warning as he observed her moving quickly, he decided not to startle her.  Given his observations, when he saw Ms. Isaacs exiting without use of the railing at more than 10 inches from the curb he should have provided a warning. 


Medical Marijuana Cream Claim Fails at Trial

November 25th, 2014

To date I am aware of two cases in British Columbia that have awarded damages for the costs of medical marijuana to treat personal injuries (these can be accessed here and here).  Earlier this week reasons were released by the BC Supreme Court considering whether to award damages for the cost of medical marijuana cream to a Plaintiff who suffered from chronic pain following a vehicle collision.  In rejecting this aspect of the claim Madam Justice Duncan provided the following reasons:

[75]         In his May 2012, report Dr. Hershler noted that with 4.5 years having passed since the accident it was unlikely the plaintiff’s condition would improve. He classified the plaintiff as having a permanent partial disability with respect to his low back, which was likely to be symptomatic indefinitely. He recommended pulse signal therapy. He is one of only two service providers for this treatment. In a follow-up report dated October 11, 2012, he also recommended medical marijuana compounded in a topical cream. Dr. Hershler is aware of directives from the Canadian Medical Association and Health Canada about exercising restraint in prescribing medical marijuana. He views these directives to be aimed at smoked cannabis of a particular strain, not those he suggests as a cream or oral supplement. He agreed he is keen to use those types of applications of medical marijuana in the field to assist in the gathering of evidence about its efficacy and modality in pain management…

[98]         I agree with the defendant that Dr. Hershler’s opinion should be given little weight. I find he seized on the May 2008 MRI as the source of the plaintiff’s discomfort whereas the other experts, both Dr. Helper for the plaintiff and Dr. Paquette for the defence, had a very different view of the plaintiff’s MRI history. Similarly, I place no weight on Dr. Hershler’s recommendations for pulsed signal therapy or medical marijuana cream. The former is a service for which he is one of the only providers and the latter is a treatment in its very early experimental stage with minimal empirical evidence to suggest it will assist the plaintiff, if it is even permissible under Health Canada’s medical marijuana exceptions.

 


$75,000 Non-Pecuniary Assessment For Chronic and Disabling Neck and Back Injury

November 25th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and largely disabling neck and back injuries.

In this week’s case (Mandra v. Lu) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The Plaintiff suffered chronic neck and back injuries as a result which disabled him from is occupation as a millwright and challenged him in lighter vocational options.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[121]     Mr. Mandra was 53 years of age when the accident occurred. He was transformed from a happy, healthy and hardworking man to one who lives in constant chronic pain. His lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment and medication have not helped and there is no prognosis for improvement except as described by Dr. Helper and only in relation to his lumbar pain. Compendiously his pain is severe and chronic and disables him from the type of work he used to do. He was formerly employed as a millwright, a heavy duty job, but now has a hard time sitting or standing for prolonged periods and lacks the necessary physicality to work as he once did. The injuries render him unemployable in his past career as a millwright and only very marginally employable in lighter occupations, particularly given his challenges with English. The injuries have affected his social life and his relationship with his wife. He is not as active as he once was. He has suffered psychologically.

[122]     Balancing all these factors, I award the plaintiff $75,000 for non-pecuniary damages.


“Use of Vacation Time Does Not Represent Lost Income” in ICBC Claim

November 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding that used vacation time following an injury is not compensable as lost income in a personal injury lawsuit.

In today’s case (McCartney v. McArthur) the Plaintiff missed a week of work due to collision related injuries.  He used up vacation time during this period and was paid accordingly by his employer during the week off.  In finding that no claim for loss of income for this period can be advanced in his tort claim Mr. Justice Bowden provided the following brief reasons:

[82]         At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83]         The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84]         While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.


$75,000 Non-Pecuniary Assessment for Chronic Aggravation of Pre-Existing Neck Symptoms

November 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic aggravation of a pre-existing neck injury.

In today’s case (McCartney v. McArthur) the Plaintiff was involved in a 2010 rear end collision.  The Defendant admitted fault for the crash.  The 62 year old Plaintiff had a 20 year history of occasional neck complaints.  The collision aggravated these and led to chronic symptoms which impacted the Plaintiff’s functioning.  In assessing non-pecuniary damages at $75,000 Mr. Justice Bowden provided the following reasons:

69]         I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident…

[76]         I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him.

[77]         The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman.

[78]         I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life.

[79]         After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.


Addiction and Pain Management Programs Not Mandatory ICBC Benefits

November 19th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an addiction program and a multi-disciplinary pain management program are not mandatory ICBC No Fault benefits.

In today’s case (MacDonald v. ICBC) the Plaintiff was inured in three separate motor vehicle collisions.  She was insured with ICBC.  She suffered a variety of injuries which resulted in chronic pain and addiction issues.  Among the recommended treatments for the Plaintiff were an inpatient residential addiction treatment program along with a multi-disciplinary pain management program.

ICBC refused to fund these under the Plaintiff’s policy of insurance arguing that neither of these programs were ‘mandatory’ benefits covered under section 88(1) of the Insurance (Vehicle) Regulation.  Madam Justice Fitzpatrick agreed finding components of the programs (such as physiotherapy) may be covered individually and further that the programs may be covered as ‘permissive’ ICBC benefits, they could not be compelled under section 88.  In reaching this conclusion the Court reasoned as follows:

[83]         The mandatory provisions in s. 88(1) stand in contrast to those in s. 88(2) where ICBC may provide funds to an insured at its discretion and where ICBC’s medical advisor advises that funded benefits under this section are likely to promote the rehabilitation of the insured who was injured in an accident…

[95]         I am reluctantly driven to the conclusion that Ms. MacDonald’s position is not supportable. As ICBC argues, I think correctly, the Raguin decision has confirmed that the proper interpretation of the section is a more restrictive one in the sense that it is driven by the specific enumerated services that are described in s. 88(1). In accordance with that approach, I see no basis upon which services could be seen to be included as long as they are overseen or supervised by a medical doctor. Services provided by others do not become “medical services” simply because a medical doctor directs them or oversees or supervises them.

[96]         From a public policy perspective, this strict interpretation of the enumerated services presents some difficulties. It is unlikely that the Legislature intended to adopt a rehabilitation-in-pieces approach to legislation that exists to promote reasonable and necessary benefit coverage to injured persons. However, in the absence of clear guidance in the Regulation that s. 88(1) is capable of supporting multi-disciplinary programs, these programs cannot be read-in to include other services not specifically enumerated, such as the court did in Raguin.

[97]         Even accepting Ms. MacDonald’s proposition regarding medical supervision, there is no evidence that in fact, the services at Heartwood and the “other services” at Orion Health either were or would be under the supervision of a medical doctor (although I appreciate that Dr. Mead continued to treat Ms. MacDonald for pain and addiction issues throughout her stay at Heartwood).

[98]         The difficulty is that the argument for both Heartwood and Orion Health is an all or nothing proposition. Both are, as described above, multi-disciplinary treatment programs that bring in various disciplines in order to offer a team approach to dealing with a host of problems, such as Ms. MacDonald has. I have no hesitation in finding that some of the services, such as provided by a medical doctor, were or would be covered under s. 88(1) but it is equally apparent that some are not. In my view, this leads to the conclusion that the treatment programs, as a whole, are not covered under s. 88(1).


Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

November 19th, 2014

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness.  In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited.  In reaching this decision Master Young provided the following reasons:

[1]             THE COURT:  I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2]             Apparently there is no authority on this point under the new Civil Rules..

[12]         I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13]         So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14]         Having said that then, I will allow the plaintiff to make submissions of the application.


Privacy A Rare Protection For Personal Injury Plaintiffs

November 18th, 2014

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all.  These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details.  Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement.  In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.

In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues.  This is because the plaintiff works in employment that involves some physical stress on his body”.  ICBC objected to the reqest for privacy.  In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12]         The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13]         I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff.  There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14]         I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice.  There are sound reasons for publishing the names of litigants.  One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so.  This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15]         The application to anonymize the judgment is therefore refused.


BC Court of Appeal – Interest Disbursements Not Recoverable in Injury Litigation

November 17th, 2014

Important reasons for judgement were released today by the BC Court of Appeal (MacKenzie v. Rogalasky) addressing an unsettled area of law, whether interest charges on disbursements incurred during the prosecution of an injury lawsuit could be recovered.  In short BC’s highest court ruled they cannot.

In reaching this conclusion the Court provided the following reasons:

[78]         In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them.

[79]         The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule.

[80]         It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”.

[81]         In my opinion, this interpretation of the rule flows naturally from the purposes of a costs regime and the guidance provided on that subject by the Supreme Court of Canada, most particularly in Walker. Several points emerge which assist in interpreting the rule. The first is that a costs regime serves multiple functions, only one of which is indemnification. Even in respect of that function, the costs regime provides only partial, and not full, indemnity to a successful party. Accordingly, one is not compelled to conclude that interest expenses must be recoverable because the purpose of the rule is to make a successful party whole. To the contrary, partial indemnification underlies both the recovery of costs on a tariff and disbursements (because the reasonable amount awarded may not fully indemnify the cost of necessary or proper disbursements).

[82]         Second, within the context of partial indemnification, costs awards should be predictable and consistent across similar cases. Only if this is the case can parties accurately assess the risks of engaging in litigation and make rational decisions about settling or prosecuting the case. Recognizing interest expenses as recoverable disbursements is inconsistent with this objective because exposure to costs and disbursements would not depend on the nature of the case itself, but on the particular circumstances of a party. These circumstances may well involve the relationship between the party and counsel and be matters the opposing party has no right to know.

[83]         Third, although costs regimes may affect access to justice, the Supreme Court has made it clear that costs are not the means of securing access to justice, except in exceptional circumstances. Of this more below.

[84]         Finally, costs awards relate to the particular case and are made as between the successful and the unsuccessful parties. On the facts of these appeals, it seems reasonable to infer that recognizing interest as an expense would lead to a transfer of resources between classes of parties in which unsuccessful defendants are exposed to the risks of paying high interest rates designed to pay for the cost of lending money, not just to the successful party in the case but other plaintiffs who receive financing but may not recover moneys to pay for their loans…

[93]         I conclude that an out-of-pocket interest expense incurred to finance disbursements is not a recoverable disbursement under Rule 14-1(5). I acknowledge that this result is likely inconsistent with the position in New Brunswick and possibly Ontario. To the extent that this is the case, I am respectfully, and for the reasons set out above, unable to agree with the conclusion those courts reached.